project no. 24376

PROJECT NO. 24376

IMPLEMENTATION OF HB 472, RELATING TO THE REGULATION OF TELEMARKETING SOLICITATION AND PROVIDING PENALTIES

§§§§§§

PUBLIC UTILITY COMMISSION

OF TEXAS

(Staff Recommendation) ORDER ADOPTING REPEAL OF §25.484 AND NEW §25.484, RELATING TO THE TEXAS ELECTRIC NO-CALL LIST, AS APPROVED AT THE

MAY 23, 2002 OPEN MEETING

The Public Utility Commission of Texas (commission) adopts the repeal of §25.484, relating to

Do Not Call List, and new §25.484, relating to the Texas Electric No-Call List with changes to

the proposed text as published in the April 5, 2002 Texas Register (27 TexReg 2671). The rule

implements provisions of House Bill 472 (HB 472), 77th Legislature, later codified as the Texas

Business and Commerce Code Annotated §43.103 (Bus. & Com. Code) (Vernon 1998 &

Supplement 2002) relating to Rules, Customer Information, Isolated Violation. The new section

also implements the Public Utility Regulatory Act, Texas Utilities Code Annotated (Vernon

1998 & Supplement 2002) (PURA) §39.1025, relating to Limitations on Telephone Solicitation.

This new section was adopted under Project Number 24376.

The creation of the Texas electric no-call list assists electricity customers in limiting the number

of telemarketing calls received relating to a customer’s choice of retail electric providers (REPs).

This rule prescribes how customers will be notified of the availability of the Texas electric no-

call list, the procedures for disseminating the list to REPs, and violations of this section. As

provided in the Bus. & Com. Code §43.101 relating to Commission to Establish Texas No-call

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PROJECT NO. 24376 PROPOSAL FOR ADOPTION PAGE 2 OF 28

Lists, the state has contracted with a private vendor to maintain and administer the Texas electric

no-call database. The no-call program is self-funding in that costs of the vendor contract will be

offset by the fees paid by customers to register for the list and telemarketers to subscribe to the

list.

After the proposed repeal and new rule were published in the Texas Register, the commission

received written comments from the following: the affiliated retail electric providers of

American Electric Power Electric Company, Inc.─CPL Retail Energy, WTU Retail Energy, and

AEP Retail Energy (AEP REPs); Entergy Solutions Select Ltd., Entergy Solutions Essentials

Ltd, and Entergy Solutions Ltd. (Entergy REPs); the Office of Public Utility Counsel (OPC);

Reliant Resources, Incorporated (RRI); and, TXU Energy Retail Company LP (TXU Energy).

A public hearing on the proposed section was held at commission offices on May 6, 2002 at 1:30

p.m. Representatives from AT&T Communications of Texas, L.P. (AT&T), MCI Worldcom,

Inc. (MCI), OPC, the State of Texas - Office of the Attorney General (OAG), Southwestern Bell

Telephone Company (SWBT), and TXU Energy attended the hearing and provided comments.

To the extent that these comments differ from the submitted written comments, such comments

are summarized herein.

General comments

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Entergy REPs and OPC indicated they generally support the adoption of the proposed rules.

RRI suggested minor changes throughout the rule in order to harmonize the provisions in this

section with the provision in §26.37, Texas no-call list. RRI also maintained that the changes

would clarify that the Texas no-call list and the Texas electric no-call list are two different lists

and are based on two different databases. In general RRI suggested changes such as adding

“Texas” before the terms electric no-call database and electric no-call registrant (formerly

electric no-call subscriber).

The commission disagrees that adding the word “Texas” before the terms electric no-call

database and electric no-call registrant serves to enhance the distinction between the two

rules and declines to make that particular change. The rules relating to the Texas no-call

list and the Texas electric no-call list are in separate chapters of the commission’s

substantive rules, and are therefore clearly distinguishable. Furthermore, the definitions

contained in subsection (c) of each section clearly distinguish the lists and databases from

one another. Accordingly, the commission declines to make the clarifying changes

suggested by RRI.

Specific comments to the rule language

Subsection (c) contains definitions of terms used in this rule. TXU Energy asserted that the

definition of established business relationship, as proposed, implies that consumer business

relationships are developed only through personal contacts or face-to-face meetings and fails to

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recognize relationships developed by mail, facsimile or over the Internet. TXU suggested

deleting the phrase “between a person and a consumer” in subsection (c)(5). In its reply

comments, OPC indicated that it did not find the phrase confusing, and emphasized that the

definitions of “person” in the commission’s substantive rules (§25.5(42) and §26.5(153), relating

to Definitions) are not limited to a natural person. MCI indicated that the definition of person in

the substantive rules appears to resolve TXU Energy’s concern.

The commission agrees with the reply comments of OPC and MCI and declines to alter the

definition of an established business relationship. The definition is neither confusing nor

restrictive in the manner purported by TXU Energy.

OPC proposed altering the definition of telephone call by adding the phrase “but not limited to”

after the word “including.” OPC contended that by doing so, the rule would clearly pertain to

any other types of telephone contact made with future technological advances.

The commission agrees that the clarification proposed by OPC will better reflect the

commission’s intent with respect to potential technological advances not specifically

contemplated in the rule, and adopts the recommended language.

Subsection (d), relating to the requirement of REPs, establishes the required time frame within

which REPs must remove newly-registered telephone numbers on the electric no-call list from

their internal telemarketing call lists. Entergy REPs, RRI, AEP REPs and TXU Energy

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generally disagreed with the time limit of five days set in the proposed rule and indicated it

would be difficult to comply. The commenters indicated that the amount of time should be

consistent with §26.37, relating to Texas No-Call List, which provides a 60-day grace period for

telemarketers. Entergy REPs and RRI asserted that harmonizing this requirement in the two

rules is especially important given that REPs will be subject to both rules. They stated that there

is no reason that REPs engaged in telemarketing should be held to a harsher standard than other

telemarketers. AEP REPs further indicated that incorporating the same timeframe will eliminate

unnecessary confusion; thereby facilitating compliance with both rules. RRI suggested the

commission distinguish between business or calendar days. In its reply comments, OPC

indicated it opposed any additional time allowance.

In the former §25.484 relating to Do Not Call List, REPs were required to remove

customer names within five calendar days. The Bus. & Com. Code §43.102 relating to

Telemarketing of Persons on Texas No-Call List; Enforcement; Penalties, specifically

indicates that a telemarketer may not make a telemarketing call to a telephone number

that has been published on the Texas no-call list more than 60 days after the telephone

number appears on the then-current list. However, PURA §39.1025 does not specify a time

limit after which REPs can no longer make telemarketing calls to electric no-call

registrants. Therefore, to maintain consistency between the proposed §25.484 and the

proposed §26.37, the commission adopts the suggested revision. The commission also

adopts RRI’s recommendation by specifying calendar days.

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Entergy REPs, RRI, AEP REPs and TXU Energy recommended clarifying the precise date

triggering the 60-day, formerly five-day, compliance period addressed in subsection (d). The

commenters contended that as proposed, it is unclear as to whether the 60-day compliance period

starts when a customer registers a telephone number on the electric no-call list or when the

telephone number is published on the list. AEP REPs recommended that the commission clarify

that the 60-day compliance period begins after the REP receives the most recent version of the

list from the database administrator. RRI suggested that the addition of the word “published”

would help clarify this provision.

The commission makes the requested clarification, but disagrees that the 60-day

compliance period begins after the REP receives the most recent version of the list from

the commission. Such wording implies that the 60-day compliance period would not begin

until the REP took the time to obtain the quarterly published list, and would seriously

complicate the enforcement process. As noted above, the Bus. & Com. Code §43.102

clearly references a telephone number that has been “published” on the list.

Subsection (e) relating to exemptions excludes certain types of telephone calls from the

requirements of this section. In its written comments, TXU Energy suggested that the

introductory phrase “In response to a call” be added to subsection (e)(1). TXU Energy

contended that the added language is necessary to clarify that telemarketing calls made by a REP

at the request of an individual is not a violation of this section even if that individual’s telephone

number appears on the electric no-call list. Likewise, AEP REPs suggested adding similar

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language that would accomplish the same result. AEP REPs contend that a telephone call made

by the REP responding to a request by an electric no-call registrant would be reasonable,

consistent with the requestor’s wishes, and not a violation of this section.

The commission disagrees with TXU Energy’s characterization that its suggested language

does not alter the meaning of the rule. The rule, as published, and in full accord with the

enabling statute, specifically refers to a call made by a customer. Furthermore, the

definition of telemarketing call specifically references an unsolicited telephone call. The

commission is not persuaded that the additional exemption is necessary or serves any

clarifying purpose.

TXU Energy also recommended adding a new subsection (e)(4), allowing a REP acting as a

telemarketer to call a business, unless the business has previously informed the REP that it does

not wish to receive such calls. TXU Energy asserted that the change would be consistent with

the language in proposed §26.37(e)(3) relating to exemptions to the Texas No-Call List.

The original legislative authority for placing limitations on telephone solicitation related to

a customer’s choice of REPs was Senate Bill 7 (SB 7) passed by the 76th legislature. SB 7

was later codified as PURA §39.1025. The statute prohibits the telephone solicitation of an

electricity “customer” who has previously advised the commission that he/she does not

wish to receive such solicitations. While HB 472 created the general no-call list and

specifically exempted business customers from being placed on the list, PURA §39.1025 did

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not. The commission declines to narrow the scope of applicable customers able to register

for the electric no-call database. Pursuant to PURA §39.1025, any customer, residential or

business, who objects to receiving telemarketing calls from REPs shall have the

opportunity to register for the electric no-call list.

Subsection (f) outlines when the electric no-call list will be updated and published by the

administrator. TXU Energy suggested that in subsection (f)(2)(A) the commission should clarify

that the administrator must update and publish the “entire” Texas electric no-call list, not merely

the most recent additions. TXU Energy asserted that publication of the entire list would lessen

the possibility of error when a REP is updating its list. In addition, TXU Energy requested a

provision requiring the administrator of the electric no-call database to alert subscribing REPs,

via electronic mail, when the updated list is available in order to expedite REP access to the

electric no-call list and the updating of REPs’ call lists.

TXU Energy also recommended adding new language that clarifies that REPs have 60 days from

the publication date to acquire the updated list and incorporate the information into their internal

telemarketing databases. Entergy REPs asserted that the electronic internet address for the

Texas electric no-call list should be added in order to ease the process of acquiring the electric

no-call list for new REPs entering the market.

The commission adopts TXU Energy’s suggestion regarding adding the word “entire” to

(f)(2)(A). Publication and distribution of the entire electric no-call list each quarter will

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avoid any variations in the number of names contained on the lists received by subscribing

REPs. This precautionary measure will assist in preventing any unintended omissions at

the distribution phase. The commission finds that the 60-day compliance period is

adequately explained in §25.484(d) and declines to reiterate the requirement elsewhere in

the rule. Regarding the suggestion that the rule should recite the Internet address for the

electric no-call list, the commission disagrees that such information is appropriate for

inclusion in the rule. REPs entering the Texas market are likely to obtain §25.484 and

other relevant material from the commission’s own website, which also prominently

displays the current contact information for the no-call lists. While the commission does

not anticipate that this contact information will change frequently, it is a matter of

prudent resource planning to avoid including in a rule information that is subject to

change and is generally available elsewhere. Similarly, the commission declines to

require that the database administrator alert subscribing REPs via electronic mail

whenever the list has been updated and is available to REPs. The statute prescribes

specific dates for publication and distribution of the electric no-call list. The commission

finds that placing an added responsibility upon the administrator when the time frame has

already been clearly set serves no beneficial purpose.

In order to clarify a potential misinterpretation regarding the intended uses of the electric

no-call database, the commission adds clarifying language to subsection (f)(3)(A). The

added language clarifies that a subscribing REP cannot share a purchased electric no-call

list with its affiliates. Instead, each affiliate of a parent company that chooses to make

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telemarketing calls to Texas electric customers must purchase the list; just as each

customer that wishes to register more than one telephone number must pay a registration

fee for each number. However, the commission notes that this does not preclude a parent

company from purchasing numerous copies of the electric no-call list and then disbursing

the lists to its affiliates, as long as each affiliate has separately subscribed to, and paid the

appropriate fee for, the Texas electric no-call list and agrees to comply with the

requirements of this section. The commission also makes other minor clarifications to this

subsection.

Subsection (g) relating to notice outlines the requirements for the customer notice provided by

REPs. Entergy REPs contended that the notice requirements proposed are burdensome and will

cause REPs to incur unnecessary costs. Energy REPs indicated that the only information that

should be provided to the customer is the contact information for registration. RRI asserted that

the amount of information required for the notice will not fit in the space allowed in a bill

message, which is typically limited to 3 lines of text.

AEP REPs proposed adding clarifying language to (g)(1)(B) by adding the words “from Retail

Electric Providers” to the end of the sentence. AEP REPs asserted that the added language is

important so that customers are not misled to believe that registering for the electric no-call list

will put an end to all telemarketing calls. OPC agreed with the clarification but proposed

slightly different language.

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RRI also suggested additional language to (g)(1) in order to inform an electric customer how to

remove a telephone number from the Texas Electric No-Call List and that a telephone number

may be automatically removed if that number changes. OPC also supported this addition.

The commission accepts AEP REPs and OPC’s suggested clarification, but notes that

§25.484(g)(1)(H) is also specifically targeted to alert registrants to the fact that registering

for the electric no-call list may not stop other telemarketing calls. The commission rejects

RRI’s suggested language regarding Internet information because the addition is not

necessary to a customer’s initial decision to register for the electric no-call list.

Subsection (g)(2) addressed publication of the notice. RRI raised several questions regarding the

intent of the proposed provisions and suggested reorganizing the information for the sake of

clarity.

Entergy REPs contend that REPs are already required to distribute the Your Rights as a

Customer disclosure annually. REPs electing to provide notification of the Texas electric no-call

list to customers in the Your Rights as a Customer disclosure should not be required to provide

additional notice.

TXU Energy recommended adding clarifying language outlining that if a REP chooses to

include notice in either the Terms of Service document or Your Rights as a Customer disclosure,

the notice should be distributed when those documents are normally distributed in compliance

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with commission rules. TXU Energy suggested the addition of an explicit statement in this

subsection indicating that inclusion of the notice in the Terms of Service document does not

constitute a material change to that document; thus, would not require an additional distribution.

OPC objected to the latter request by TXU stating that if the change is not deemed to be a

material change, then existing customers would not receive notice under this rule.

TXU Energy recommended deletion of (g)(2)(B) relating to annual notice to individual

customers. Instead, TXU Energy recommended allowing notice via the Terms of Service

document, which would be given to all new customers and to all current customers whenever a

material change in terms or conditions of service occurs; and in the Your Rights are a Customer

document, which would be provided to new customers and annually to all customers thereafter.

OPC responded to TXU Energy’s comments. OPC agreed to annual notice in the Your Rights as

a Customer disclosure only if the annual notice is distributed to all of the REP’s customers (as

opposed to only the new customers) and the distribution occurs between June 1 and August 31 of

each year. This would allow customers to be alerted to the right to register for the electric no-

call list twice per year. OPC contended that because customers may be added to the electric no-

call list four times per year, requiring notice twice per year is not unreasonable.

Subsection (g)(3) relates to the timing of the annual notice and requires REPs to provide such

notice between June 1 and August 31 of each year, beginning in 2002. OPC recommended

minor clarifying changes adding the words “each of” and “individual” to (g)(3).

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Entergy REPs recommended that those REPs who have previously notified or will notify

customers through the Your Right as a Customer disclosure should be exempt from this specific

provision.

TXU Energy asserted that customer education goals regarding the electric no-call list can be

achieved without an annual bill message or insert. However, should annual notice remain a

requirement, TXU Energy recommended modifying the deadline for the annual notice so that

initial notification is not required until 2003. AEP REPs and TXU Energy contended that the

current requirements in (g)(3) and (g)(4) pose a problem with respect to how REPs are to

comply during the first year the rule is in effect. AEP REPs are concerned that the proposed

time lines allow an insufficient amount of time for REPs to formulate a notice, submit it to the

commission for review, and disburse it to customers. AEP REPs indicate that REPs must plan

and schedule their bill messages and inserts months in advance.

Furthermore, TXU suggested and RRI supported, that instead of requiring annual notification

during specific months, the rule should allow each REP to determine the month in which the

notice is sent. OPC opposed this suggestion indicating it would make it more difficult to

monitor REP compliance. The deletion of a uniform time for distribution would also reduce the

potential for public awareness groups or the media to report on the notice and alert the public.

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Regarding subsection (g)(4), Entergy REPs and TXU Energy recommended deleting the

requirement regarding commission review of the notice. Entergy REPs assert that the notice

requirements have been sufficiently addressed in the rule and further commission review of the

notice is unnecessary. In the alternative, TXU Energy suggested that the commission might

want to develop a notice template for use by REPs. TXU Energy asserted that developing a

template would eliminate the time and work involved in commission staff’s review of notices.

OPC did not oppose the creation of a template and indicated it would actively participate in any

workshop held for such purpose. However, OPC strongly opposed Entergy’s suggestion of

deleting the commission review requirement.

The commission agrees with the commenters that argued that objectives for customer

notification can be reasonably met by requiring annual notification through each REP’s

Your Rights as a Customer disclosure. Because mention of the Electric No-Call List in the

Your Rights as a Customer disclosure is currently required by §25.475(f)(4)(K) (relating to

Information Disclosures to Residential and Small Commercial Customers), the notice

requirements in proposed §25.484 would not constitute a material change to that

disclosure. Given that the Your Rights as a Customer disclosure is already subject to

review by the commission, a separate requirement is not necessary. The commission notes

that placement of the notice required by §25.484(g)(2) in a REP’s Terms of Service

document is also acceptable, if the REP’s Your Rights as a Customer disclosure complies

with §25.4751(f)(4)(K).

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Subsection (g)(4)(B) requires REPs to retain customer notification records and provide such

records to the commission. OPC requested that the commission require REPs to provide copies

of customer notification records to OPC in addition to the commission. OPC contended that

such a requirement would serve to inform OPC of the status of REP compliance and highlight

the level of priority afforded this issue. At the public hearing, OPC clarified its written

comments and stated that OPC did not intend to suggest that it is a regulatory body, but that it is

charged by the Legislature with representing the public interest of small commercial and

residential customers. OPC stated that this gives it the jurisdiction to look at the notices supplied

by companies to their customers. OPC further stated that allowing it to look at the notices would

not place a burden on companies and that no companies have asserted that the notice information

is confidential. OPC also stated that that agency would pay any copying costs associated with

supporting its request. OPC stated that, if it was not allowed to view all notices, the agency

would have to file open records request for the materials and this would be administratively

burdensome.

RRI objected indicating that there is no justification for the added expense and time of providing

copies to OPC copies and that any records required by OPC are better dealt with on a case-by-

case basis rather than through a general requirement.

The commission agrees with RRI and declines to implement OPC’s suggested language.

There is no statutory authority for requiring OPC receipt of REP customer notification

records.

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TXU Energy and RRI recommended adding the introductory language “Upon commission

request” to (g)(4)(B) in order to clarify when a REP is required to provide copies of records

maintained under the requirements of this rule.

The commission finds that the language requested by TXU Energy and RRI is contained

in §25.491 (relating to Record Retention and Reporting Requirements) and declines to

make the recommended change.

Subsection (h) relates to violations and delineates that it is an affirmative defense to this section

that a telemarketing call made to a telephone number on the Texas electric no-call list is not a

violation if the telemarketing call is an isolated occurrence made by a REP who has in place

adequate procedures to comply with this section. Entergy REPS generally supported the

provisions in this subsection, but suggested clarifying language regarding the term “isolated

occurrence.” Entergy REPs explained that a situation might arise in which several telephone

numbers might be called in error; therefore, the number of telephone calls made in error should

not be the determining factor as to what constitutes an isolated occurrence. Entergy

recommended specifying in the rule that an isolated occurrence may involve more than one

incident “or separate occurrence.”

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The commission modifies the proposed language in (h)(2)(A) to provide clarity to the

meaning of isolated occurence. The commission inserts the “separate occurrence”

language suggested by Entergy REPs, but the commission deletes the word “incident”

because it is not necessary to the definition. This clarifying change is also made for

consistency with §26.37(h)(2)(A), relating to the Texas no-call list.

Subsection (i) relating to Enforcement and Penalties specifies commission authority for

investigating alleged violations of this section. Entergy REPs proposed revising the wording to

clarify that violations are “alleged.”

The commission disagrees with Entergy REPs and declines to make the suggested change.

The provisions of §25.484 (relating to Customer Access and Complaint Handling) apply to

customer complaints regarding REP actions. The purpose of this subsection is to specify

the entity responsible for enforcement actions beyond the initial complaint resolution

process. The commission does, however, delete the word “exclusive” from this subsection

because the word is not necessary to the meaning of the sentence.

All comments, including any not specifically referenced herein, were fully considered by the

commission. In adopting this section, the commission makes other minor modifications for the

purposes of clarifying its intent and consistency with proposed §26.37. For example, the

commission changes the term electric no-call “subscriber” to electric no-call “registrant” to

distinguish an electric no-call “registrant” as a telephone customer that has registered to be on

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the Texas electric no-call list, from a “subscribing REP” which denotes a REP that has

“subscribed,” through application and payment of fees, to receive the quarterly published electric

no-call list.

This repeal and new section are adopted under the Public Utility Regulatory Act, Texas Utilities

Code Annotated §14.002 (Vernon 1998, Supplement 2002) (PURA) which provides the

commission with the authority to make and enforce rules reasonably required in the exercise of

its powers and jurisdiction; and specifically, §39.1025 which provides the commission with the

authority to operate the no-call database and prohibits the telephone solicitation of an electricity

customer who has previously advised the commission that he/she does not want to receive such

solicitations. In addition, this repeal and new section are adopted under the Texas Business &

Commerce Code Annotated §43.103 (Vernon 1998 & Supplement 2002) (Bus. & Com. Code)

which grants the commission the authority to adopt rules to administer the no-call list.

Cross Reference to Statutes: Public Utility Regulatory Act §§14.002, §14.052, §39.1025; Texas

Business & Commerce Code Annotated §§ 43.002, 43.003, 43.101, 43.102, 43.103.

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§25.484. Do Not Call List. (Repeal)

§25.484. Texas Electric No-Call List.

(a) Purpose. This section implements the Public Utility Regulatory Act (PURA) §39.1025,

relating to Limitations on Telephone Solicitation, and the Texas Business & Commerce

Code Annotated (Bus. & Com. Code) §43.103 relating to rules, customer information,

and isolated violations of the Texas no-call list.

(b) Application. This section applies to retail electric providers (REPs) as defined in §25.5

of this title (relating to Definitions). A REP acting as a telemarketer, as defined by

§26.37 of this title (relating to Texas No-Call List), is also subject to the provisions of

§26.37.

(c) Definitions. The following words and terms, when used in this section shall have the

following meanings, unless the context clearly indicates otherwise.

(1) Consumer good or service — For purposes of this section, consumer good or

service has the same meaning as Bus. & Com. Code §43.002(3) relating to

Definitions.

(2) Electric no-call database — Database administered by the commission or its

designee that contains the names, addresses, telephone numbers and dates of

registration for all Texas electric no-call registrants. subscribers. Lists or other

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information generated from the electric no-call database shall be deemed to be a

part of the database for purposes of enforcing this section.

(3) Electric no-call list — List that is published and distributed as required by

subsection (f)(2) of this section.

(4) Electric no-call registrant subscriber — A telephone customer who has

registered, by application and payment of accompanying fee, for the Texas

electric no-call list.

(5) Established business relationship — A prior or existing relationship that has not

been terminated by either party, and that was formed by voluntary two-way

communication between a person and a consumer regardless of whether

consideration was exchanged, regarding consumer goods or services offered by

the person.

(6) Telemarketing call — An unsolicited telephone call made to:

(A) solicit a sale of a consumer good or service;

(B) solicit an extension of credit for a consumer good or service; or,

(C) obtain information that may be used to solicit a sale of a consumer good

or service or to extend credit for sale.

(7) Telephone call — A call or other transmission that is made to or received at a

telephone number, including but not limited to:

(A) a call made by an automatic dial announcing device (ADAD); or,

(B) a transmission to a facsimile recording device.

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(d) Requirement of REPs. A REP shall not make or cause to be made a telemarketing call

to a telephone number that has been published for more than 60 calendar days on the

Texas electric no-call list. more than five days.

(e) Exemptions. This section shall not apply to a telephone call made:

(1) By an electric no-call registrant subscriber that is the result of a solicitation by a

REP or in response to general media advertising by direct mail solicitations that

clearly, conspicuously, and truthfully make all disclosures required by federal or

state law;

(2) In connection with:

(A) An established business relationship; or,

(B) A business relationship that has been terminated, if the call is made before

the later of

(i) the date of publication of the first Texas electric no-call list on

which the electric no-call registrant’s subscriber's telephone

number appears; or

(ii) one year after the date of termination; or,

(3) To collect a debt.

(f) Electric no-call database.

(1) Administrator. The commission or its designee shall establish and provide for

the operation of the electric no-call database.

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(2) Distribution of database.

(A) Timing. Beginning on April 1, 2002, the administrator of the electric no-

call database will update and publish the entire Texas electric no-call list

database on January 1, April 1, July 1, and October 1 of each year;

(B) Fees. The no-call electric listdatabase shall be made available to

subscribing REPs for a set fee not to exceed $75 per list per quarter;

(C) Format. The commission or its designee will make the no-call

listdatabase available to subscribing REPs by:

(i) electronic internet access in a downloadable format;

(ii) Compact Disk Read Only Memory (CD-ROM) format;

(iii) paper copy, if requested by the REP; and,

(iv) any other format agreed upon by the current administrator of the

no-call database and the subscribing REP.

(3) Intended use of the electric no-call database and electric no-call list.

(A) The electric no-call database shall be used only for the intended purposes

purpose of creating an electric no-call list and of promoting and furthering

statutory mandates in accordance with PURA §39.1025 and the Bus. &

Com. Code, Chapter chapter 43 relating to Telemarketing. Neither the

The electric no-call database nor a published electric no-call list shall not

be transferred, exchanged or resold to a non-subscribing any other entity,

group, or individual, regardless of whether compensation is exchanged.

(B) The no-call database is not open to public inspection or disclosure.

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(C) The administrator shall take all necessary steps to protect the

confidentiality of the no-call database and prevent access to the no-call

database by unauthorized parties.

(4) Penalties for misuse of information. Improper use of the electric no-call

database or a published electric no-call list by the administrator, REPs, or any

other person, regardless of the method of attainment, shall be subject to

administrative penalties and enforcement provisions contained in §22.246 of this

title (relating to Administrative Penalties).

(g) Notice. A REP shall provide notice of the electric no-call list to its customers as

specified by this subsection. In addition to the required notice, the REP may engage in

other forms of customer notification.

(1) Content of notice. A REP shall provide notice in compliance with §25.473 of

this title (relating to Non-English Language Requirements) that, at a minimum,

clearly explains the following:

(A) Beginning January 1, 2002, customers may add their name, address and

telephone number to a state-sponsored electric no-call list that is intended

to limit the number of telemarketing calls received relating to the

customer's choice of REPs;

(B) When a customer who registers for inclusion on subscribes to the electric

no-call list can expect to stop receiving telemarketing calls on behalf of a

REP;

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(C) A customer must pay a fee to register for the electric no-call list;

(D) Registration of a telephone number on the electric no-call list expires on

the fifth anniversary of the date the number is first published on the list;

(E) Registration of a telephone number on the electric no-call list can be

accomplished via the United States Postal Service, Internet, or

telephonically;

(F) The customer registration fee, which cannot exceed five dollars per term,

must be paid by credit card when registering online or by telephone.

When registering by mail, the fee must be paid by credit card, check or

money order;

(G) The toll-free telephone number, website address, and mailing address for

registration; and,

(H) A customer that registers for inclusion on subscribes to the electric no-call

list may will continue to receive calls from telemarketers other than REPs,

and a statement that the customer may instead or may also register for a

no-call list that is intended to limit telemarketing calls regarding consumer

goods and services in general, including electric service.

(2) Publication of notice.

(A) Terms of service document. A REP shall include notice in its Terms terms of

Service service document or Your Rights as a Customer disclosure. The notice

shall be easily legible, prominently displayed and comply with the requirements

listed in paragraph (1) of this subsection.

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(B) Annual notice to individual customers. A REP shall provide

notice of the Texas no-call lists to each of its customers in Texas in

the form of a bill message or an insert in the customer's billing

statement. Electronic notification is permissible for any customer

who, during the notification period, is receiving billing statements

from the REP in an electronic format.

(3) Timing of annual notice. A REP shall provide annual notice to

its customers between June 1 and August 31 of each year,

beginning in 2002.

(34) Compliance and enforcement.

(A) Commission review of the notice. The REP shall file a copy of the annual notice

with the commission at least 45 days prior to the intended date of distribution.

The REP shall also inform the commission of its intended method and timing of

customer notification. The notice will be reviewed by commission staff before

distribution to customers. Commission staff will notify the REP within ten days

of submission if the proposed notice must be modified, and the specific

modifications required.

(B) Records of customer notification. A REP shall provide a copy of

records maintained under the requirements of this subsection as specified by

§25.491 of this title (relating to Record Retention and Reporting Requirements).

(h) Violations.

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(1) Separate occurrence. Each telemarketing call to a telephone number on the

electric no-call list shall be deemed a separate occurrence.

(2) Isolated occurrence. A telemarketing call made to a number on the electric no-

call list is not a violation of this section if the telemarketing call is determined by

the commission to be an isolated occurrence.

(A) An isolated occurrence is an event, action, or occurrence that arises

unexpectedly and unintentionally, and is caused by something other than a

failure to implement or follow reasonable procedures. An isolated

occurrence may involve more than one incidentseparate occurrence, but it

does not involve a pattern or practice.

(B) The burden to prove that the telemarketing call was made in error and was

an isolated occurrence rests upon the REP who made the call. In order for

a REP to assert as an affirmative defense claim that a potential violation

of this section was an isolated occurrence, the REP must first provide

evidence of the following:

(i) The REP has adopted and implemented written procedures to

ensure compliance with this section and effectively prevent

telemarketing calls that are in violation of this section, including

taking corrective actions when appropriate;

(ii) The REP has trained its personnel in the established procedures;

and,

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(iii) The telemarketing call that violated this section was made contrary

to the policies and procedures established by the REP.

(i) Enforcement and penalties. The commission has exclusive jurisdiction to investigate

REP violations of this section, made by REPs, as specified in §25.492 of this title

(relating to Non-Compliance with Rules or Orders; Enforcement by the Commission).

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This agency hereby certifies that the rule, as adopted, has been reviewed by legal counsel

and found to be a valid exercise of the agency's legal authority. It is therefore ordered by the

Public Utility Commission of Texas that §25.484 relating to Texas Electric No-Call List is

hereby adopted with changes to the text as proposed.

ISSUED IN AUSTIN, TEXAS ON THE _________ DAY OF ___________ 2002.

PUBLIC UTILITY COMMISSION OF TEXAS

_________________________________________Commissioner Brett A. Perlman

_________________________________________Commissioner Rebecca Klein

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